Use It or Lose It: Trademark Abandonment, Non-Use, and the Three-Year Presumption
By Casey Scott McKay ·
American trademark rights are built on use, and they dissolve when use stops. This article explains the statutory definition of abandonment in 15 U.S.C. § 1127, the rebuttable presumption that arises after three consecutive years of non-use, and the difference between the burden of production the presumption shifts and the burden of persuasion it never moves. It traces the token-use cases from Procter & Gamble's minor brands program through Exxon's keep-alive shipments to the Fifth Circuit's rescue of a Louisiana motel owner's METCHUP registration, and works through what courts accept as proof of an intent to resume use — Mattel's Crash Dummies revival succeeded where CBS's Amos 'n' Andy warehousing failed. It covers excusable non-use, partial abandonment by goods and services, modified marks, geographic abandonment, and the two other routes to forfeiture, naked licensing and assignment in gross, then maps the Trademark Modernization Act's ex parte expungement and reexamination proceedings under §§ 1066a-1066b with the USPTO's own institution and cancellation statistics. Finally it identifies where the doctrine is genuinely unsettled, including the circuit split on the standard of proof and whether the three-year presumption applies to unregistered marks.
IP and Technology > Trademarks | Article | Published 25 October 2023 - Updated 24 June 2026 | Casey Scott McKay - marksy.us
Summary. American trademark rights are built on use, and they dissolve when use stops. This article explains the statutory definition of abandonment in 15 U.S.C. § 1127, the rebuttable presumption that arises after three consecutive years of non-use, and the difference between the burden of production that presumption shifts and the burden of persuasion it never moves. It traces the token-use cases from Procter & Gamble's minor brands program through Exxon's keep-alive shipments to the Fifth Circuit's rescue of a Louisiana motel owner's METCHUP registration, and works through what courts accept as proof of an intent to resume use — Mattel's Crash Dummies revival succeeded where CBS's Amos 'n' Andy warehousing failed. It covers excusable non-use, partial abandonment by goods and services, modified marks, geographic abandonment, and the two other routes to forfeiture: naked licensing and assignment in gross. It then maps the Trademark Modernization Act's ex parte expungement and reexamination proceedings under 15 U.S.C. §§ 1066a-1066b, with the USPTO's own institution and cancellation statistics, and identifies the places the doctrine is genuinely unsettled.
Keywords: trademark abandonment · non-use · three-year presumption · intent to resume use · token use · excusable non-use · naked licensing · assignment in gross · residual goodwill · section 1127 · trademark modernization act · expungement · reexamination · ttab cancellation · deadwood registrations · bona fide use in commerce · burden of persuasion · partial abandonment · zombie brands · section 8 declaration
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